B-173473, SEP 23, 1971

B-173473, SEP 23, 1971

BID RESPONSIVENESS - ERRONEOUS DETERMINATION CONCURRING IN THE CONCLUSION OF THE CONTRACTING OFFICER THAT THE REJECTION OF THE LOW BID OF DATA ENTRY SYSTEMS, INC. UNDER AN RFP ISSUED BY THE NIH FOR ONE DIGITAL DATA ACQUISITION SYSTEM WAS IN ERROR AND DIRECTING THAT THE CONTRACT AWARDED TO A.D. DATA SYSTEMS, INC. BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT. UNDER FPR 1-2.202-5(F), UNSOLICITED DESCRIPTIVE LITERATURE SUBMITTED WITH A BID DOES NOT RENDER IT NONRESPONSIVE UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION TO QUALIFY THE BID. SINCE NO SUCH INTENT APPEARED IN THE DESCRIPTIVE LITERATURE SUBMITTED BY DATA ENTRY, THE DETERMINATION THAT ITS BID WAS NONRESPONSIVE WAS IN ERROR.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED AUGUST 18, 1971, FROM THE DIRECTOR OF PROCUREMENT AND MATERIEL MANAGEMENT, OASAM, REPORTING ON THE PROTEST OF DATA ENTRY SYSTEMS, INC., AGAINST THE REJECTION OF ITS LOW BID UNDER INVITATION FOR BIDS (IFB) NO. NIH-71B-(RR)-419, ISSUED BY THE NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE SUBJECT INVITATION SOLICITED BIDS FOR FURNISHING ONE DIGITAL DATA ACQUISITION SYSTEM, WITH COUPLER INTERFACING TO GOVERNMENT-FURNISHED FLEXOWRITER, IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS. THE CONTRACTING OFFICER REJECTED THE DATA ENTRY SYSTEMS BID ON THE BASIS THAT BROCHURES SUBMITTED WITH IT QUALIFIED THE BID SO AS TO RENDER IT NONRESPONSIVE.

THE CONTRACTING OFFICER NOW STATES THAT THE REJECTION OF THE BID WAS ERRONEOUS. THE CONCLUSION IS PREMISED UPON THE FACT THAT THE BID WAS IN ACCORDANCE WITH THE IFB AND THE SEVERAL BROCHURES ON THE STANDARD PRODUCTS MANUFACTURED BY DATA ENTRY SYSTEMS THAT ACCOMPANIED THE BID WERE UNSOLICITED AND WERE NOT CITED IN THE BID. NEITHER IS THERE ANY REFERENCE IN THE BID TO THE STANDARD PRODUCTS IN THE BROCHURES. IN THIS CONNECTION, THE ADMINISTRATIVE REPORT NOTES THAT WITH REGARD TO UNSOLICITED DESCRIPTIVE LITERATURE THE FEDERAL PROCUREMENT REGULATIONS, SECTION 1- 2.202-5(F), STATE:

"UNSOLICITED DESCRIPTIVE LITERATURE. IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID."

IN 39 COMP. GEN. 878 (1960), OUR OFFICE HELD, QUOTING FROM THE SYLLABUS:

"A LOW BIDDER WHO VOLUNTARILY SUBMITTED WITH HIS BID GENERAL LITERATURE ON VARIOUS MODELS OF EQUIPMENT MANUFACTURED BY IT, WITHOUT REFERENCE TO THE PARTICULAR TYPE OF EQUIPMENT REQUIRED BY THE INVITATION OR THE MODEL INTENDED TO BE FURNISHED AND WITHOUT REFERENCE IN THE BID TO ANY EXCEPTIONS TO THE SPECIFICATIONS, MAY NOT BE REGARDED AS OFFERING OTHER THAN THE SPECIFICATION EQUIPMENT OR AS QUALIFYING THE BID AND, THEREFORE, THE BID SHOULD NOT BE REJECTED ON THE BASIS THAT THE DESCRIPTIVE LITERATURE MADE IT NONRESPONSIVE TO THE INVITATION."

SEE, ALSO, B-169057, APRIL 23, 1970, AS MODIFIED BY 49 COMP. GEN. 851 (1970). THEREFORE, WE CONCUR WITH THE CONCLUSION THAT THE DATA ENTRY SYSTEMS BID SHOULD NOT HAVE BEEN REJECTED.

HOWEVER, WHILE THE REPORT ADMITS THAT THE REJECTION OF THE BID WAS IMPROPER AND IT IS INDICATED THAT A STOPWORK ORDER WAS ISSUED BY THE PROCUREMENT ACTIVITY ON AUGUST 6, 1971, AGAINST THE CONTRACT AWARDED TO A. D. DATA SYSTEMS, INC., IT IS SUGGESTED THAT IT WOULD NOT BE IN THE INTERESTS OF THE GOVERNMENT TO CANCEL THE CONTRACT. THAT CONCLUSION IS BASED UPON A MEMORANDUM OF AUGUST 11, 1971, INDICATING THAT THE CONDITION OF EXISTING EQUIPMENT WAS SUCH THAT THE RESEARCH PROGRAM IN WHICH IT IS BEING UTILIZED WOULD BE SHUT DOWN AND EXPERIMENTS STARTED FROM THE BEGINNING IF THE NEW EQUIPMENT IS NOT DELIVERED BY SEPTEMBER 28, 1971. THAT CONNECTION, THE CONTRACTOR HAS ADVISED OUR OFFICE THAT IF IT WAS DIRECTED TO PROCEED WITH THE CONTRACT, IT WOULD BE ABLE TO DELIVER THE EQUIPMENT IN 3 WEEKS. IT IS THEREFORE APPARENT THAT THE EQUIPMENT COULD NOT BE DELIVERED BY SEPTEMBER 28, 1971. ACCORDINGLY, SINCE THE PROGRAM WILL HAVE TO BE SHUT DOWN AND RENEWED AGAIN FROM THE BEGINNING IN ANY EVENT, IT DOES NOT APPEAR THAT THE TERMINATION WILL HAVE A SERIOUS ADVERSE AFFECT ON THE RESEARCH PROGRAM.

IN VIEW OF THE FOREGOING, WE RECOMMEND THAT THE CONTRACT AWARDED TO A. D. DATA SYSTEMS, INC., BE TERMINATED FOR CONVENIENCE OF THE GOVERNMENT SINCE THE RECORD ESTABLISHES THAT AWARD WAS MADE TO OTHER THAN THE LOW RESPONSIVE BIDDER. 51 COMP. GEN. (B-172570, JULY 26, 1971). WE FURTHER RECOMMEND THAT AWARD OF THE PROCUREMENT BE MADE TO DATA ENTRY SYSTEMS, IF OTHERWISE PROPER.

AS THIS DECISION CONTAINS A RECOMMENDATION FOR CORRECTIVE ACTION TO BE TAKEN, IT IS BEING TRANSMITTED BY LETTERS OF TODAY TO THE CONGRESSIONAL COMMITTEES NAMED IN SECTION 232 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, PUBLIC LAW 91-510. IN VIEW THEREOF, YOUR ATTENTION IS DIRECTED TO SECTION 236 OF THE ACT WHICH REQUIRES THAT YOU SUBMIT WRITTEN STATEMENTS OF THE ACTION TAKEN WITH RESPECT TO THE RECOMMENDATION. THE STATEMENTS ARE TO BE SENT TO THE HOUSE AND SENATE COMMITTEES ON GOVERNMENT OPERATIONS NOT LATER THAN 60 DAYS AFTER THE DATE OF THIS LETTER AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST FOR APPROPRIATIONS MADE BY YOUR AGENCY MORE THAN 60 DAYS AFTER THE DATE OF THIS LETTER.

WE WOULD APPRECIATE ADVICE OF WHATEVER ACTION IS TAKEN ON OUR RECOMMENDATION.